Due Process Limits on Long-Term Parent–Child No‑Contact Protective Orders: Commentary on Stary v. Ethridge

I. Introduction

The Supreme Court of Texas’s decision in Christine Lenore Stary v. Brady Neal Ethridge (No. 23‑0067, opinion delivered May 2, 2025) marks a major development at the intersection of family-violence law and constitutional parental-rights doctrine.

At issue was a lifetime civil protective order that prohibited all contact between a mother, Christine Stary, and her three children. The order had been entered under the Texas Family Code provisions governing family-violence protective orders that may last more than two years. Stary argued that this order was, in substance, the equivalent of terminating her parental rights, yet it had been imposed in a civil proceeding under a mere preponderance-of-the-evidence standard, without the procedural safeguards that attach to termination cases.

The Court agreed in substantial part. It held that:

  • When a protective order under Texas Family Code § 85.025(a‑1) prohibits all contact between a parent and child for a period exceeding two years, it deprives the parent of a fundamental right to the care, custody, and control of the child.
  • As a matter of constitutional due process, the predicate findings authorizing such a long-term, no-contact order must be proven by clear and convincing evidence, not merely by a preponderance of the evidence.
  • Before imposing that level of restriction for more than two years, the trial court must also consider the best interest of the child.

The Court reversed the court of appeals’ judgment, vacated the lifetime no-contact protective order, and remanded for a new hearing applying these heightened standards.

This commentary examines the opinion’s reasoning, its reliance on prior precedents, and its practical and doctrinal implications—including for family courts, protective-order practice, and parental-rights jurisprudence in Texas.

II. Summary of the Opinion

A. Background and Procedural Posture

Christine Stary and Brady Ethridge divorced in 2018 with agreed shared custody of their three children. In March 2020, Stary was arrested and charged with felony injury to a child, based on allegations that she repeatedly struck one child’s head against a hardwood floor. (The criminal case was later dismissed in February 2025, after the events at issue here.)

A week after the arrest, Ethridge filed for a civil family-violence protective order, seeking an order “longer than two years” under Texas Family Code § 85.025(a‑1). He alleged:

  • acts of felony-level family violence, and
  • that Stary caused serious bodily injury to the children.

The trial court:

  • issued an ex parte temporary protective order barring Stary from contact with the children while the application was pending;
  • held an evidentiary hearing in September 2020, where:
    • Ethridge testified to past abuse based largely on the children’s out-of-court statements (admitted under Family Code § 84.006, which allows hearsay statements of children under 12 describing family violence);
    • he introduced medical records corroborating injuries from the incident leading to the criminal charge;
    • the judge interviewed the children in chambers;
    • Stary testified, denied abuse, and called a character witness who described her as a gentle disciplinarian.

The trial court found that Stary had committed family violence “that would be a felony if charged” and, invoking § 85.025(a‑1), entered a protective order of “permanent duration”:

  • Duration: effective for Stary’s lifetime;
  • Scope: bans all contact with the children—no direct communication of any kind and no presence within 100 yards of the children or any location where she knows they may be.

Stary sought findings of fact and conclusions of law (not provided), moved for new trial, and argued that:

  • the order was effectively a termination of her parental rights, and
  • her fundamental constitutional rights had been violated by the use of a mere preponderance-of-the-evidence standard and lack of adequate procedural safeguards.

The court of appeals (Houston [1st Dist.]) affirmed, over a dissent. It reasoned that a protective order—even a lifetime no-contact order—does not actually divest all parental rights (such as certain information and consent rights preserved by the divorce decree) and therefore is not constitutionally equivalent to termination. The court of appeals thus held that no heightened evidentiary burden was constitutionally required for such orders.

Ethridge did not participate in the appeal to the court of appeals or in the Supreme Court. The Supreme Court appointed amicus counsel to defend the judgment.

B. Holdings

The Supreme Court held:
  1. Fundamental right implicated. A protective order that prohibits all contact between a parent and child for more than two years does deprive the parent of the fundamental constitutional right to make decisions concerning the care, custody, and control of the child, because:
    • “A parent cannot parent without presence.”
    • Parental communication and presence are integral to the exercise of the parental right and duty.
  2. Heightened burden of proof. When a trial court issues a protective order under Family Code § 85.025(a‑1) that:
    • lasts more than two years, and
    • bans all contact between a parent and the parent’s child,

    constitutional due process requires that the statutory predicates for an order exceeding two years (felony family violence, serious bodily injury, or repeated protective-order violations) be established by clear and convincing evidence.

  3. Best-interest consideration. Although the protective-order statute does not expressly require it when the order is issued only against the alleged abuser, the court held that, as a constitutional matter, trial courts must consider the best interest of the child before cutting off a parent’s contact with the child for more than two years.
  4. Scope of the holding. The Court expressly limited its analysis to:
    • protective orders that prohibit all communication between a parent and child, and
    • have a duration of more than two years under § 85.025(a‑1).

    It did not decide what constitutional requirements, if any, apply to protective orders lasting less than two years, or to long-term orders that allow some limited contact.

  5. Remedy. Because neither the trial court nor the court of appeals applied the clear-and-convincing standard or expressly analyzed the children’s best interest under that constitutional framework, the Supreme Court:
    • reversed the court of appeals; and
    • remanded to the trial court for a new hearing applying:
      • the clear and convincing evidence burden for the statutory predicates under § 85.025(a‑1); and
      • a best-interest-of-the-child analysis concerning the no-contact duration.

III. Precedents and Doctrinal Lineage

A. Fundamental Parental Rights

The Court’s starting point is the well-established recognition that parents possess a fundamental liberty interest in the care, custody, and control of their children under both the Federal and Texas Constitutions.

Key precedents cited:

  • Troxel v. Granville, 530 U.S. 57 (2000): The U.S. Supreme Court’s leading case recognizing that “the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests” protected by the Due Process Clause. Texas cases frequently quote Troxel’s language.
  • In re C.J.C., 603 S.W.3d 804 (Tex. 2020): The Texas Supreme Court applied Troxel to hold that fit parents are entitled to a strong presumption that their decisions concerning custody and possession are in their child’s best interest, and that courts must give “special weight” to those decisions in custody disputes with nonparents.
  • In re R.J.G., 681 S.W.3d 370 (Tex. 2023): Reaffirmed that before infringing a parent’s right to care for and have custody of her child, the State must demonstrate that governmental intrusion is justified.
  • In re G.M., 596 S.W.2d 846 (Tex. 1980): An early and foundational Texas termination-of-parental-rights decision, emphasizing that the right to “enjoy a natural family unit” is of such weight and gravity that termination proceedings require a heightened burden of proof.
  • In re J.F.-G., 627 S.W.3d 304 (Tex. 2021): Recognized the emotional harm that can flow to children from the absence of a parent, reinforcing the Court’s view that presence and ongoing relationship are central to the parent-child bond.

From this body of precedent, the Court in Stary underscores that the parental right is not just a paper entitlement to make abstract “decisions” about a child; rather, it is inextricably tied to the parent’s ability to be present, communicate, and form emotional attachments with the child.

B. Burdens of Proof and Due Process in Family Contexts

The opinion draws heavily on due process cases that calibrate burdens of proof when important liberty interests are at stake.

  • Addington v. Texas, 441 U.S. 418 (1979), and its Texas counterpart, State v. Addington, 588 S.W.2d 569 (Tex. 1979):
    • Addressed the standard of proof in involuntary civil-commitment proceedings.
    • Held that due process requires clear and convincing evidence because civil commitment involves a significant deprivation of liberty, and the social cost of erroneous confinement is too high if only a preponderance standard is used.
    • Defined clear and convincing evidence as a level of proof producing in the factfinder a “firm belief or conviction” in the truth of the allegations.
  • Santosky v. Kramer, 455 U.S. 745 (1982):
    • Applied the Addington framework to termination of parental rights.
    • Identified three factors for determining the constitutionally required burden of proof:
      1. the private interests affected;
      2. the risk of erroneous deprivation under the current procedure and the probable value of additional safeguards; and
      3. the government’s interest.
    • Held that termination proceedings require at least clear and convincing evidence because of the “unique kind of deprivation” they entail.
  • In re G.M., 596 S.W.2d 846 (Tex. 1980):
    • Before Santosky, Texas’s highest court had already independently held that due process requires clear and convincing evidence in termination cases.
    • Later codified in Family Code § 161.001(b).
  • In re J.F.C., 96 S.W.3d 256 (Tex. 2002); In re A.C., 560 S.W.3d 624 (Tex. 2018); In re K.S.L., 538 S.W.3d 107 (Tex. 2017); and In re B.L.D., 113 S.W.3d 340 (Tex. 2003):
    • These cases refine the application of clear and convincing evidence in termination proceedings and clarify the appellate standard for legal and factual sufficiency review.
    • They expressly adopt the Santosky three-factor test in the parental-termination context.
  • In re N.G., 577 S.W.3d 230 (Tex. 2019):
    • Reaffirmed the need for careful appellate review in termination cases, particularly when predicate grounds like endangerment or abuse are involved, because of the lasting stigma and collateral consequences of such findings.

By invoking this line of cases, the Stary Court treats long-term no-contact protective orders as functionally similar to termination orders for purposes of procedural safeguards—because both sever or severely disrupt the practical exercise of the parent-child relationship.

C. Protective Orders and Evidentiary Standards

Before Stary, Texas courts generally assumed that family-violence protective orders were governed by the ordinary civil standard of proof—preponderance of the evidence—because the governing statute was silent. For example:

  • Roper v. Jolliffe, 493 S.W.3d 624 (Tex. App.—Dallas 2015, pet. denied), noted that because protective-order proceedings are civil, the traditional preponderance standard applies.

The Family Code provisions relevant here include:

  • § 81.001: A trial court “shall render” a protective order if it finds that family violence has occurred.
  • §§ 84.001–.002: Require expedited hearings (generally within 14–20 days of filing).
  • § 85.022: Authorizes a range of relief, including forbidding communication or proximity to protected persons.
  • § 85.025(a): Default maximum duration of two years for protective orders.
  • § 85.025(a‑1): Allows a protective order to last beyond two years—potentially for life—if the court finds at least one of three additional conditions:
    • the respondent committed an act constituting a felony offense involving family violence, regardless of charge or conviction;
    • the respondent caused serious bodily injury to the applicant or a member of the household; or
    • the respondent committed family violence and had been subject to protective orders in at least two earlier cases involving the same applicant.
  • § 85.025(b)–(b‑2): Permits the respondent to move for review of a long-term protective order twice (the first after one year; a second review, if the first is denied, after another year). The order cannot otherwise be revisited except on appeal.
  • § 84.006: Permits admission, in protective-order hearings, of certain hearsay statements by children under twelve describing family violence.

Stary superimposes a constitutional requirement on that statutory scheme: where the protective order both (a) exceeds two years, and (b) cuts off all parent-child contact, due process requires proof of the § 85.025(a‑1) predicates by clear and convincing evidence, rather than by a mere preponderance.

D. “Best Interest of the Child” Jurisprudence

The Court next integrates its longstanding best-interest doctrine into the protective-order context.

  • Wiley v. Spratlan, 543 S.W.2d 349 (Tex. 1976): Earlier case emphasizing that while the parent-child relationship is a fundamental liberty, “protection of the child is paramount” in custody and termination contexts, and that the child’s best interest is usually served by leaving custody with natural parents.
  • In re A.V., 113 S.W.3d 355 (Tex. 2003): Described the State’s duty to protect abused and neglected children, and the remedial purpose of termination statutes.
  • In re J.W.T., 872 S.W.2d 189 (Tex. 1994): Reiterated that protection of the child is paramount in disputes that affect the parent-child relationship.
  • In re V.L.K., 24 S.W.3d 338 (Tex. 2000); Taylor v. Meek, 276 S.W.2d 787 (Tex. 1955):
    • Recognized the deep presumption in Texas law that a child’s best interests are generally served by being in the custody of natural parents.

The Family Code explicitly requires a best-interest finding in termination suits (Family Code § 161.001(b)(2)) and in certain bilateral protective orders that allocate rights or possession between parties (§ 85.001(b)(2); § 85.021). However, it does not expressly require a best-interest finding for a unilateral protective order that merely prohibits conduct by the respondent.

Stary fills that gap at the constitutional level—at least for long-term no-contact orders involving parents and children—by holding that trial courts must consider the child’s best interests before imposing such an intrusive and extended restriction.

IV. The Court’s Legal Reasoning

A. Step 1: Identifying the Protected Liberty Interest

Both parties agreed that parental rights are a protected liberty interest under the Due Process Clause. The dispute centered on whether the protective order at issue—lifetime, no contact—actually deprived Stary of that interest such that heightened procedural safeguards were constitutionally required.

The court of appeals had held that because Stary retained some residual, “ancillary” parental rights (to receive information, consent to medical treatment in limited situations, confer with the father, etc.), the order did not amount to a deprivation equivalent to termination. The Supreme Court disagreed, focusing on the practical effect of the no-contact order:

  • The order barred Stary from any presence or communication in her children’s lives, indefinitely.
  • The Court traced earlier descriptions of parental rights as the right to:
    • “establish a home and bring up children,” and
    • “enjoy a natural family unit,”
    both of which presuppose the parent’s physical and emotional presence in the child’s life.
  • The Court cited its own jurisprudence characterizing parents’ duties (not just rights) to:
    • recognize and address children’s illnesses,
    • provide emotional nurture, and
    • prepare children for adult obligations,
      • tasks that are effectively impossible when the parent is barred from all contact for an extended period.

The Court distilled this into a simple principle: “A parent cannot parent without presence.” Because the protective order deprived Stary of sustained presence and communication, it effectively stripped her of the core elements of her parental right, even if some peripheral legal entitlements remained on paper.

The Court also noted that this particular order extended past the children’s age of majority, at least potentially, since it lasted for Stary’s lifetime. This aspect made it even more intrusive than a typical termination order, which does not legally bar voluntary contact between an adult child and a formerly terminated parent.

B. Step 2: Determining “What Process Is Due”

Having found that the order implicated a fundamental liberty interest, the Court turned to the question: what procedural safeguards does due process require in this setting?

The specific procedural issue preserved and presented was the burden of proof. Stary argued that:

  • the preponderance standard was insufficient;
  • the order was functionally equivalent to termination; and
  • clear and convincing evidence should be required to support the statutory findings that allow orders to exceed two years.

Using the Santosky three-factor framework (itself an application of Mathews v. Eldridge to termination cases), the Court analyzed:

  1. The private interest at stake;
  2. The risk of erroneous deprivation under existing procedures, and the likely value of additional safeguards;
  3. The government’s countervailing interest.

1. Private Interest

The Court likened the private interest here to that in termination cases:

  • In termination, the interest is described as “commanding” because it results in a permanent severance of the legal parent-child relationship.
  • Long-term no-contact protective orders similarly “break the ties between a parent and child,” especially when they extend for many years or, as here, the parent’s lifetime.

Even though the protective order technically stops short of terminating all rights and duties (e.g., it does not automatically cut off inheritance rights, and some residual decision-making may remain), the Court emphasized the practical deprivation of the relationship. For a parent, being unable to see or speak to one’s child for years is, in substantive terms, a “unique kind of deprivation” very close to termination.

Thus, the private interest weighed heavily in favor of heightened procedural protection, particularly a higher burden of proof.

2. Risk of Error and Value of Additional Safeguards

The Court next examined the risk of erroneous deprivation under the existing protective-order regime:

  • Protective order proceedings are:
    • expedited,
    • civil in nature, and
    • often involve hearsay, especially children’s hearsay under Family Code § 84.006, admitted without the formalities of a criminal trial.
  • The statute gives trial courts broad discretion concerning:
    • the length of orders “exceeding two years” (up to and including the respondent’s lifetime), and
    • the scope of restrictions (from limited restrictions to complete bans on communication and proximity).
  • The statute is silent on the burden of proof, leading courts to default to the ordinary “more likely than not” civil standard.

The Court noted that a preponderance standard:

  • may “misdirect the factfinder in the marginal case” by emphasizing quantitative rather than qualitative evaluation of the evidence;
  • is especially problematic when the consequence is a long-term or lifetime deprivation of a fundamental right.

By contrast, a clear and convincing standard:

  • better reflects the gravity of the interest at stake;
  • requires the trial judge to reach a “firm belief or conviction” that:
    • family violence occurred, and
    • that it rose to the statutory level (felony conduct, serious bodily injury, or repeated violations) necessary for an order exceeding two years.
  • reduces the chance that a parent’s relationship with a child will be destroyed or severely impaired based on marginal, uncorroborated, or weak evidence.

The Court recognized that the statute already attempts to reduce the risk of overlong orders by allowing:

  • one review motion after one year; and
  • a second review motion at least one year after the first denial.

But this procedural avenue was insufficient to cure the fundamental problem: the initial imposition of a long-term, no-contact order based on a low evidentiary threshold. The deprivation begins at entry of the order, and the parent bears the burden of seeking later review. Given the magnitude of the deprivation, the “social cost of even occasional error is sizable” and justifies shifting the burden of proof upward to the clear-and-convincing standard at the initial decision point.

3. Government Interest

The State’s interest is substantial: protecting victims—especially children—from family violence, and ensuring their safety and wellbeing. The Court acknowledged this interest and emphasized that:

  • protecting children from abuse remains a paramount goal, and
  • the State’s duty to protect children underlies its authority to intervene in the family.

However, the Court also reiterated that:

  • the State “registers no gain” when it separates children from fit parents; and
  • the State’s interest is also served by reducing the risk of erroneous deprivation of parental rights, given the presumption that the best interest of the child is generally served by maintaining the parent-child relationship.

On balance, the Court found that:

  • the State’s interest in efficient, low-threshold protective-order procedures did not justify allowing a mere preponderance standard for orders that are effectively akin to termination in their practical impact;
  • trial courts are already familiar with the clear-and-convincing standard from termination cases, so the administrative burden of applying it in this narrow class of protective-order cases is limited.

Thus, the third factor did not outweigh the first two; rather, it aligned with the need for greater accuracy when the stakes are so high.

C. The Best-Interest Requirement

The Court then turned to the role of the child’s best interest in this context.

Formally, the Family Code does not require a best-interest finding for unilateral protective orders that merely restrict the respondent’s conduct. But the Court reasoned that when the order:

  • extends beyond two years, and
  • prevents all contact between a parent and child,

the practical reality is that the order functions similarly to a custody or termination determination—areas in which best interest has long been recognized as a central consideration.

The Court stressed:

  • Protective orders should not be used to “punish parents for their conduct” but to protect the best interests of children.
  • Trial courts must, therefore, consider whether cutting off all contact for such an extended period is:
    • actually necessary to protect the child, and
    • truly in the child’s overall best interest, considering the value of the parent-child relationship itself.

This requirement also serves a structural function: it “tempers” the otherwise very broad discretion that § 85.025(a‑1) gives trial courts to choose any duration beyond two years, including lifetime bans. The constitutional presumption favoring natural parents acts as a background restraint on overly punitive or disproportionate orders.

Notably, the Court did not explicitly say that the best-interest determination itself must be proven by clear and convincing evidence (as is required in termination cases). Instead, it held:

  • the statutory predicates for a long-term order (felony-level family violence, serious bodily injury, or repeat violations) must be proven by clear and convincing evidence; and
  • in addition, the trial court must consider the child’s best interest in determining whether and how long to cut off contact.

In practice, however, best-interest considerations in these cases will likely be closely intertwined with the clear-and-convincing evidence regarding the underlying conduct and the prospective risk of harm.

D. Limits of the Holding and Issues Not Decided

The Court carefully limited its decision in several ways:

  • Orders shorter than two years. The Court emphasized that it was reviewing the application of the specific statute governing protective orders “for a period that exceeds two years” (§ 85.025(a‑1)). It explicitly stated that it did not comment on:
    • the constitutional implications of protective orders lasting less than two years; or
    • whether some shorter duration, combined with other factors, might also trigger heightened due process requirements.
  • Orders that do not completely ban contact. The holding is framed around orders that “ban all communication” between a parent and child. The opinion leaves open whether, and under what circumstances, partial-contact arrangements (e.g., supervised visitation bans, limited electronic contact) for periods longer than two years might require the same level of procedural protection.
  • Criminal conviction requirement. At oral argument, Stary’s counsel suggested that due process should require an actual felony conviction to support a finding of “felony family violence” under § 85.025(a‑1)(1). The Court expressly declined to reach this question because it was not preserved in the trial court. Thus, no conviction is currently required; the court may still find felony-level conduct in a civil protective-order proceeding based on the enhanced burden of clear and convincing evidence.
  • Other alleged due process deficiencies. Stary also raised, at argument, various other procedural objections (e.g., perhaps related to child chambers interviews or hearsay). These were deemed unpreserved under Texas Rule of Appellate Procedure 33.1 and therefore not addressed.

E. Remedy and Application in This Case

The trial court had:

  • found that Stary committed family violence amounting to a felony; and
  • found that the protective order was in the children’s best interests;

but:

  • did not specify the burden of proof it applied (by default, presumably preponderance), and
  • did not issue requested findings of fact and conclusions of law.

The court of appeals, reviewing under a preponderance standard, had concluded that “some evidence” supported the felony-family-violence finding, which was sufficient to defeat a legal-sufficiency challenge at that level.

The Supreme Court did not decide whether the evidence in the record could satisfy a clear-and-convincing standard, nor did it decide whether lifetime no-contact was in the children’s best interest. Instead, it held that:

  • given the change in legal framework announced in the opinion,
  • the “most prudent course” was to remand to the trial court;
  • the trial court must conduct a new hearing and:
    • apply the clear and convincing standard to the § 85.025(a‑1) predicates, and
    • consider whether a no-contact order exceeding two years is in the children’s best interests.

Because the case was being remanded for a new hearing, the Court did not reach Stary’s additional claims challenging the exclusion of evidence at the first hearing.

V. Simplifying Key Legal Concepts

This section explains some of the more technical concepts referenced in the opinion in more accessible terms.

A. Protective Orders and “Family Violence” in Texas

  • Family-violence protective order: A civil court order designed to protect victims from family or household members who have committed family violence. It can:
    • prohibit contact or communication;
    • bar the respondent from approaching certain locations; and
    • carry serious consequences if violated (violation is a criminal offense).
  • “Family violence” (simplified):
    • Generally includes acts by a family or household member intended to result in physical harm, bodily injury, assault, or sexual assault, or a threat that reasonably places the victim in fear of imminent harm.
  • Orders exceeding two years: Most protective orders are capped at two years. Under § 85.025(a‑1), a court can exceed that limit if it finds, among other possibilities, that:
    • the conduct would constitute a felony offense involving family violence; or
    • the victim suffered serious bodily injury; or
    • the respondent repeatedly violated prior protective orders involving the same applicant.

B. Burdens of Proof

  • Preponderance of the evidence: The standard used in most civil cases. It asks whether a fact is “more likely than not” to be true—i.e., just over 50% probability. If the evidence tips the scales slightly in favor of a party’s claim, that party meets its burden.
  • Clear and convincing evidence: A higher standard used when “particularly important individual interests” are at stake, such as:
    • termination of parental rights,
    • civil commitment, and now
    • long-term no-contact orders between parents and children exceeding two years.
    It requires that the evidence produce in the judge’s or jury’s mind a firm belief or conviction of the truth of the allegations—not just a slight edge.

C. Termination of Parental Rights

  • What it is: A legal process in which a court permanently severs the parent-child relationship. After termination (subject to narrow exceptions), the parent and child no longer have mutual rights and duties such as custody, visitation, and decision-making (inheritance rights may remain unless otherwise modified).
  • Standard of proof: Texas law, in line with constitutional due process, requires clear and convincing evidence that:
    • at least one statutory ground for termination exists (e.g., abuse, neglect, endangerment, failure to support), and
    • termination is in the child’s best interest.

Stary analogizes long-term, parent–child no-contact protective orders to termination because both substantially sever the practical relationship between parent and child.

D. “Best Interest of the Child”

  • This is a legal standard guiding decisions about:
    • custody,
    • visitation,
    • termination of parental rights, and now
    • long-term no-contact protective orders.
  • It is a flexible, fact-intensive inquiry that typically considers:
    • the child’s emotional and physical needs;
    • the risk of physical or emotional danger;
    • the parental abilities of each parent;
    • stability of the home; and
    • the strength of the child’s bond with each parent.
  • Texas law presumes that a child’s best interests are usually served by remaining with the natural parents, absent evidence to the contrary.

E. Hearsay and Child Statements

  • Hearsay: An out-of-court statement offered in court to prove the truth of the matter asserted. Generally inadmissible unless an exception applies.
  • Family Code § 84.006: Creates an exception for protective-order hearings, allowing certain hearsay statements by children under twelve about family violence to be admitted to the same extent as in parent-child suits. This acknowledges the difficulty of having young children testify in person in adversarial settings.

F. Procedural Due Process vs. Substantive Rights

  • Substantive right: The parental right to care, custody, and control of children is a substantive liberty interest recognized by the Constitution.
  • Procedural due process: Concerns how the State may deprive a person of a substantive right, not whether it may ever do so. It asks:
    • What procedures are required—e.g., notice, a hearing, burdens of proof—to make that deprivation fair and reliable?
  • Stary operates primarily in the procedural realm: it does not say the State can never cut off contact, but rather that:
    • when it does so for longer than two years,
    • under § 85.025(a‑1),
    • it must use clear and convincing evidence and consider best interests.

VI. Impact and Implications

A. For Trial Courts and Protective-Order Practice

The most immediate impact of Stary is on how family courts handle applications for long-term protective orders that sever parental contact.

1. Heightened Evidentiary Burden

Trial courts must now:

  • treat hearings under § 85.025(a‑1) that would result in a parent–child no-contact order exceeding two years as akin to mini-termination proceedings with respect to the burden of proof, at least for the statutory predicates (felony conduct, serious bodily injury, or repeated violations);
  • ensure the evidence meets the clear-and-convincing threshold, specifically:
    • carefully weigh the reliability, corroboration, and consistency of:
      • children’s statements admitted via § 84.006,
      • medical or documentary evidence, and
      • any competing evidence or explanations offered by the accused parent.

Judges will need to be explicit on the record about:

  • applying the correct standard of proof; and
  • their factual findings supporting the statutory predicates.

2. Best-Interest Analysis in No-Contact Orders

Courts must also now:

  • articulate how the duration and severity of the no-contact order align with the child’s best interests, considering:
    • the need to protect from harm; and
    • the value of maintaining, if safely possible, some form of parental relationship (e.g., supervised contact, therapeutic contact, electronic communication).
  • consider less restrictive alternatives—such as:
    • shorter-duration orders,
    • orders allowing for monitored communication, or
    • progressive or staged contact—
      • where those alternatives can adequately protect the child while preserving parental bonds.

    3. Written Findings and Appellate Review

    Although the opinion does not create a new statutory requirement for written findings, in practice:

    • trial courts will be under greater pressure to issue findings of fact and conclusions of law upon request in these cases, so that appellate courts can meaningfully review:
      • whether clear and convincing evidence supported the statutory predicates; and
      • whether the best-interest analysis properly accounted for the parent-child relationship.

    Appellate courts, in turn, must apply the clear-and-convincing sufficiency standard drawn from termination cases (e.g., J.F.C. and A.C.), assessing whether a reasonable factfinder could have formed a firm belief or conviction about the truth of the critical allegations.

    B. For Parents, Children, and Counsel

    1. Increased Protection Against Erroneous Deprivation

    For accused parents, particularly in contentious custody or divorce contexts, Stary offers:

    • greater protection against long-term or lifetime no-contact orders based on thin or weak evidence;
    • a stronger basis to:
      • challenge such orders at trial;
      • seek detailed findings; and
      • appeal when the evidence is insufficient under the higher standard.

    For children, the decision:

    • aims to promote both:
      • their physical and emotional safety; and
      • their interest in maintaining relationships with fit parents where possible;
    • may lead courts to more carefully calibrate orders, reserving multi-year complete bans to cases where the evidence strongly supports ongoing danger.

    2. Still Robust Protection for Victims

    The decision does not roll back the availability of protective orders as such. Important points:

    • Short-term (up to two-year) protective orders remain governed by the statutory framework with no explicit constitutional change to the burden of proof.
    • Even for orders exceeding two years, the Court did not say that no-contact orders are disallowed—only that:
      • the allegations must be proven by clear and convincing evidence; and
      • trial courts must consider best interests and alternatives.

    In serious and well-documented cases of abuse or endangerment, the State and the victim-parent should still be able to meet the clear-and-convincing standard and obtain appropriately long, even lifetime, no-contact orders.

    C. Interplay with Criminal Proceedings

    Stary underscores the hybrid nature of protective-order proceedings:

    • They are formally civil and can rely on evidentiary shortcuts (such as child hearsay) and a less formal process than criminal trials.
    • But violation of a protective order is a criminal offense, and long-term no-contact orders can have consequences rivaling or surpassing criminal sanctions in their effect on parental relationships.

    Key implications:

    • A criminal charge or conviction is still not required to support a finding of “felony family violence” under § 85.025(a‑1)(1); however:
      • civil courts must now be “firmly convinced” that the conduct occurred and was felonious in nature before imposing a multi-year no-contact restriction; and
      • defense counsel representing parents in related criminal proceedings should be attentive to the collateral effects of admissions or plea negotiations on later protective-order hearings.
    • Parallel criminal and civil proceedings will need careful strategic management:
      • Parents must balance the risk of self-incrimination in criminal cases against the need to present evidence in civil protective-order hearings.
      • Civil counsel may seek continuances or tailored relief where criminal proceedings are ongoing.

    D. Legislative and Policy Considerations

    Although the Court’s ruling is grounded in constitutional due process (and so operates irrespective of statutory amendments), it will likely prompt legislative attention. Potential responses include:

    • Codifying the clear-and-convincing requirement for:
      • orders under § 85.025(a‑1) that involve a parent and child and prohibit all contact; or
      • perhaps more broadly, all protective orders exceeding a certain length that substantially interfere with parent-child relationships.
    • Explicit best-interest findings. The Legislature might require explicit written best-interest findings in:
      • long-term no-contact orders involving children;
      • protective orders that significantly affect existing custody orders.
    • Procedural safeguards regarding child testimony and hearsay. Given the increased weight attached to the evidence in long-term orders, lawmakers might:
      • revisit the contours of § 84.006 (child hearsay) for very long orders; or
      • provide additional guidance on in-camera interviews with children in protective-order contexts.

    E. Open Questions and Future Litigation

    Stary resolves some issues while explicitly leaving others open, setting the stage for future litigation.

    • Orders less than two years. Could a no-contact order of, say, 18–24 months, with severe restrictions, raise similar due process concerns? The Court did not decide this. Future cases may test:
      • whether there is a constitutional “threshold duration” for which clear and convincing evidence is required; or
      • whether the severity of the intrusion (even for shorter periods) can independently trigger heightened safeguards.
    • Partial-contact long-term orders. If a court allows limited or supervised contact over a long period, is that still close enough to termination to require clear and convincing evidence? The opinion suggests the constitutional concern is strongest when all contact is barred, but does not rule out due process arguments in less extreme cases.
    • Retroactivity. Parents currently subject to long-term, no-contact protective orders that were entered under a preponderance standard may seek:
      • modification or dissolution under § 85.025(b)–(b‑2); and/or
      • collateral or direct challenges invoking Stary’s constitutional holding.
    • Criminal conviction requirement revisited. Though not preserved here, litigants may in future challenge the constitutionality of allowing a civil judge to find “felony” conduct without a criminal conviction, particularly when the finding undergirds multi-year no-contact orders combined with possible criminal sanctions for violation.

    VII. Conclusion

    Stary v. Ethridge is a significant constitutional decision that inserts robust parental-rights doctrine into a realm previously treated as relatively streamlined and civil in character: family-violence protective orders.

    The key takeaways are:

    • When a protective order under Texas Family Code § 85.025(a‑1) both:
      • extends beyond two years, and
      • prohibits all contact between a parent and child,
      due process requires:
      • clear and convincing evidence of the statutory predicates (felony family violence, serious bodily injury, or repeated violations); and
      • judicial consideration of whether the long-term no-contact arrangement is in the child’s best interest.
    • Such orders are, in the Court’s view, sufficiently analogous to termination of parental rights that they demand similar procedural rigor, even though they do not formally sever all legal rights between parent and child.
    • The decision preserves the State’s strong interest in protecting children from family violence while reinforcing that erroneous or excessive interference with the parent-child relationship carries grave costs for both parents and children.

    Going forward, Texas trial courts must treat long-term, parent–child no-contact orders with a level of seriousness comparable to termination proceedings, and practitioners must be prepared to litigate these matters under a heightened evidentiary and constitutional framework. The opinion thus both closes a perceived “loophole” that allowed de facto termination through protective orders under a low standard of proof, and clarifies the constitutional boundaries of family-violence remedies when they collide most directly with fundamental parental rights.